Preview
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM INDEX NO. E2021008190
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3231219
Book Page CIVIL
Return To: No. Pages: 7
ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Instrument: AFFIDAVIT IN SUPPORT
New York, NY 10016
Control #: 202210201518
Index #: E2021008190
Date: 10/20/2022
ADAMIDES, KATHERINE Time: 11:24:57 PM
ADAMS, TYRUS ASA
ALLMAN, JOE
BEADLE, ALAN
BRALEY, KENNETH
Baxter, Todd
ROCHESTER CITY OF
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
1 of 7
202210201518 Index #
INDEX : E2021008190
NO. E2021008190
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
KATHERINE ADAMIDES, TYRUS ASA ADAMS, JOE
ALLMAN, ALAN BEADLE, KENNETH BRALEY,
AFFIRMATION IN SUPPORT
JEREMY DOBNER, MATTHEW GOULD, BRIAN
GRAVELLE, ARSENIY GUTNIK, DAMIAN HAMMOND,
LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN INDEX NO.: E2021008184
MOORE, HENRY O’BRIEN, PAMELA OWENS,
RASHIDA PRICE, ZACHARY ROBERTS, CORY
ROBINSON, CRESCENZO SCIPIONE, MICHAEL
SPORTIELLO, JAMES STAIR, DAVE SUTLIFF-ATIAS,
RHYS WHITMORE,
Plaintiffs,
-against-
THE CITY OF ROCHESTER, a municipal entity, “JOHN
DOE POLICE OFFICERS 1-200” (names and number of
whom are unknown at present), TODD BAXTER,
“RICHARD ROE SHERIFF’S DEPUTIES 1-200” (names
and number of whom are unknown at present), and other
unidentified members of the Rochester Police Department and
Monroe County Sheriff’s Office,
Defendants.
ELLIOT SHIELDS, an attorney duly admitted to practice law in the State of New York,
affirms the truth of the following pursuant to CPLR § 2106.
1. I am associated with Roth & Roth LLP, attorneys for Plaintiff herein and as such, I
am fully familiar with the facts and circumstances of this action based on the files maintained by
my office.
2. I make this affirmation in support of the within application for an Order pursuant to
CPLR § 2221(d) to reargue and/or an Order pursuant to CPLR § 2221(e) to renew the portion of the
Court’s August 24, 2022 Order on the County Defendants’ motion to dismiss (NYSCEF 54), which
2 of 7
202210201518 IndexNO.
INDEX #: E2021008190
E2021008190
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022
dismissed the Fourth Claim for Relief, which alleged that Defendant Monroe County Sheriff Todd
Baxter was negligent in the planning of the protest response.
3. Plaintiff respectfully submits that the Court erred and overlooked intervening
authority that was submitted to the Court during the pendency of the motion, when itheld that
“Plaintiffs have failed to plead this Claim for Relief by failing to sufficiently allege the existence
of a special duty or relationship between the Sheriff and the Plaintiff[s], as is required under New
York Law.” ECF 54 p. 5.
4. As explained in the memorandum of law submitted herewith, Plaintiffs respectfully
submit that the negligent planning claim was properly pled under Ferreira v. City of Binghamton,
2022 NY Slip Op 01953 at *5-6 (Mar. 23, 2022), where the Court significantly expanded what
previously had been the least frequently invoked category of special duty cases, those involving
instances where the municipality assumes positive direction and control over a known hazard.
5. As detailed more fully below, as the City and the County’s motions to dismiss were
pending and fully briefed in this case, Judge Frank Geraci issued decisions in six cases arising
from the same protests, which denied the City and the County’s motions to dismiss the exact same
“negligent planning” claim that was asserted in this case.
6. For these reasons and as more fully explained below, Plaintiffs respectfully submit
that the instant motion to renew (based on new case law) and reargue should be granted in its
entirety.
FACTUAL AND PROCEDURAL BACKGROUND
7. The Complaint was filed on September 2, 2021. (ECF 1)
8. The County Defendants filed their motion to dismiss on March 15, 2022. (ECF 8)
9. Plaintiff filed an Amended Complaint on March 22, 2022. (ECF 13)
3 of 7
202210201518 IndexNO.
INDEX #: E2021008190
E2021008190
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022
10. The day after the Amended Complaint was filed, on March 23, 2022 the Court of
Appeals handed down its landmark decision in Ferreira v. City of Binghamton, 2022 NY Slip Op
01953 (Mar. 23, 2022).
11. The FAC pleaded significant facts in support of Plaintiffs’ claim that Defendants
owed Plaintiffs a special duty under Ferreira, including, but not limited to:
a. “For months before the body worn camera video of RPD officers brutally
killing Daniel Prude was released, the CITY and RPD anticipated and
planned for large-scale protests when the video was eventually released.
City and RPD officials coordinated with Sheriff BAXTER to develop a
coordinated protest response plan. The City and BAXTER had a special
duty to plan and execute the response to the protests in a safe and lawful
manner; unfortunately that was not the case. Instead, RPD officers and
Sheriff’s Deputies, implementing the protest response plan, violently
attacked the 23 plaintiffs and other protesters, legal observers, journalists,
volunteer medics, and others. As detailed below, the City and BAXTER are
liable to plaintiffs in negligently planning and executing the response to the
protests.” ECF 13 ¶ 3.
b. On September 4, RPD officers and Sheriff’s Deputies permitted Plaintiffs
and other protesters to march onto the Court Street Bridge, and used the
bridge to trap and “kettle” protesters”. (Id. ¶ 53-55). Defendants issued a
dispersal order, knowing it was physically impossible for them to comply
with the dispersal orders, and then less than 30 seconds after the dispersal
orders were issued, RPD Officers and Sheriff’s Deputies fired hundreds of
4 of 7
202210201518 IndexNO.
INDEX #: E2021008190
E2021008190
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022
pepper balls at protesters, striking many in the head and face, and then
rushed at them, physically struck them with batons, and threw people to the
ground. Id. ¶ 57.
c. On September 5, 2020, Defendants led the protest march to the intersection
of Broad Street and Exchange Boulevard, where they were again trapped
and kettled by the metal barricades that had been erected. (Id. ¶ 60) Again,
as plaintiffs and hundreds of other protesters were trapped at the
intersection, “RPD officers and Sheriff’s deputies began to launch flash
bang grenades, release tear gas, and shoot pepper balls into the crowd
indiscriminately” and then they “charged at protesters and chased them and
attacked them in the streets of downtown Rochester.” (Id. ¶¶ 60-61)
d. The FAC detailed how the 23 Plaintiffs were injured on these nights and
several other nights, including numerous individuals being shot in the face
and head with pepper balls and/or pepper sprayed while they were trapped
by law enforcement in confined spaces. (See Id. ¶¶ 127, 166, 173, 185, 191,
201, 236, 248, 253)
12. The County filed its motion to dismiss the Amended Complaint on May 6, 2022.
(NYSCEF 20-24)
13. The City filed itsmotion to dismiss the Amended Complaint on May 17, 2022.
(NYSCEF 26-29)
14. Plaintiffs filed their opposition to the County’s motion to dismiss on June 6, 2022
(NYSCEF 31).
5 of 7
202210201518 IndexNO.
INDEX #: E2021008190
E2021008190
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022
15. Plaintiffs filed their opposition to the City’s motion to dismiss on June 6, 2022
(NYSCEF 32).
16. The County filed its Reply on June 15, 2022. (NYSCEF 33).
17. The City did not file a Reply.
18. On June 30, 2022, in 11 cases in Federal Court arising from the same protests in
September 2020, United States District Judge Frank Geraci issued decisions and orders which
mostly denied the motions to dismiss certain claims by the City of Rochester and the County of
Monroe. (See NYSCEF 34-45)
19. On July 26, 2022, your undersigned filed a letter with the Court enclosing copies
of the 11 decisions handed down in federal court by Judge Geraci. (See NYSCEF 34-45)
20. In the July 26, 2022 letter, Plaintiffs pointed out that, “In Barnhart, Flannery,
Hilderbrant, Lynch, Maring, Sorokti, Judge Geraci denied the City and the County’s motions to
dismiss the Negligent Planning claims, finding that these claims were adequately pleaded under
the Court of Appeal’s recent holding in Ferreira v. City of Binghamton, No. 10, 2022 WL 837566
(N.Y. Mar. 22, 2022).” The plaintiffs in this case assert the same negligent planning claims in the
fourth and fifth causes of action in the Amended Complaint.
21. On August 24, 2022, the Court handed down its decision and order on the County’s
motion to dismiss, which, inter alia, dismissed the Fourth Claim for Relief against Defendant
Monroe County Sheriff Todd Baxter for his Negligent Planning of the Protest Response.
(NYSCEF 54)
22. Similarly on August 24, 2022, the Court handed down its decision and order on the
City’s motion to dismiss, which, inter alia, dismissed the Fifth Claim for Relief against Defendant
City of Rochester for its Negligent Planning of the Protest Response. (NYSCEF 55)
6 of 7
202210201518 IndexNO.
INDEX #: E2021008190
E2021008190
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022
23. Both orders were served with notice of entry on September 20, 2022. (NYSCEF
57-58)
24. No prior application for the relief requested herein has been made to this Court,
WHEREFORE, plaintiffs respectfully requests that their motion to renew and reargue be
granted in its entirety and for such other and further relief as this Honorable Court deems just
and proper.
Dated: New York, New York
October 20, 2022
~//s//~
Elliot D. Shields
7 of 7
Preview
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM INDEX NO. E2021008190 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3231219 Book Page CIVIL Return To: No. Pages: 7 ELLIOT DOLBY-SHIELDS 192 Lexington Avenue, Suite 802 Instrument: AFFIDAVIT IN SUPPORT New York, NY 10016 Control #: 202210201518 Index #: E2021008190 Date: 10/20/2022 ADAMIDES, KATHERINE Time: 11:24:57 PM ADAMS, TYRUS ASA ALLMAN, JOE BEADLE, ALAN BRALEY, KENNETH Baxter, Todd ROCHESTER CITY OF Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 7 202210201518 Index # INDEX : E2021008190 NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE KATHERINE ADAMIDES, TYRUS ASA ADAMS, JOE ALLMAN, ALAN BEADLE, KENNETH BRALEY, AFFIRMATION IN SUPPORT JEREMY DOBNER, MATTHEW GOULD, BRIAN GRAVELLE, ARSENIY GUTNIK, DAMIAN HAMMOND, LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN INDEX NO.: E2021008184 MOORE, HENRY O’BRIEN, PAMELA OWENS, RASHIDA PRICE, ZACHARY ROBERTS, CORY ROBINSON, CRESCENZO SCIPIONE, MICHAEL SPORTIELLO, JAMES STAIR, DAVE SUTLIFF-ATIAS, RHYS WHITMORE, Plaintiffs, -against- THE CITY OF ROCHESTER, a municipal entity, “JOHN DOE POLICE OFFICERS 1-200” (names and number of whom are unknown at present), TODD BAXTER, “RICHARD ROE SHERIFF’S DEPUTIES 1-200” (names and number of whom are unknown at present), and other unidentified members of the Rochester Police Department and Monroe County Sheriff’s Office, Defendants. ELLIOT SHIELDS, an attorney duly admitted to practice law in the State of New York, affirms the truth of the following pursuant to CPLR § 2106. 1. I am associated with Roth & Roth LLP, attorneys for Plaintiff herein and as such, I am fully familiar with the facts and circumstances of this action based on the files maintained by my office. 2. I make this affirmation in support of the within application for an Order pursuant to CPLR § 2221(d) to reargue and/or an Order pursuant to CPLR § 2221(e) to renew the portion of the Court’s August 24, 2022 Order on the County Defendants’ motion to dismiss (NYSCEF 54), which 2 of 7 202210201518 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022 dismissed the Fourth Claim for Relief, which alleged that Defendant Monroe County Sheriff Todd Baxter was negligent in the planning of the protest response. 3. Plaintiff respectfully submits that the Court erred and overlooked intervening authority that was submitted to the Court during the pendency of the motion, when itheld that “Plaintiffs have failed to plead this Claim for Relief by failing to sufficiently allege the existence of a special duty or relationship between the Sheriff and the Plaintiff[s], as is required under New York Law.” ECF 54 p. 5. 4. As explained in the memorandum of law submitted herewith, Plaintiffs respectfully submit that the negligent planning claim was properly pled under Ferreira v. City of Binghamton, 2022 NY Slip Op 01953 at *5-6 (Mar. 23, 2022), where the Court significantly expanded what previously had been the least frequently invoked category of special duty cases, those involving instances where the municipality assumes positive direction and control over a known hazard. 5. As detailed more fully below, as the City and the County’s motions to dismiss were pending and fully briefed in this case, Judge Frank Geraci issued decisions in six cases arising from the same protests, which denied the City and the County’s motions to dismiss the exact same “negligent planning” claim that was asserted in this case. 6. For these reasons and as more fully explained below, Plaintiffs respectfully submit that the instant motion to renew (based on new case law) and reargue should be granted in its entirety. FACTUAL AND PROCEDURAL BACKGROUND 7. The Complaint was filed on September 2, 2021. (ECF 1) 8. The County Defendants filed their motion to dismiss on March 15, 2022. (ECF 8) 9. Plaintiff filed an Amended Complaint on March 22, 2022. (ECF 13) 3 of 7 202210201518 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022 10. The day after the Amended Complaint was filed, on March 23, 2022 the Court of Appeals handed down its landmark decision in Ferreira v. City of Binghamton, 2022 NY Slip Op 01953 (Mar. 23, 2022). 11. The FAC pleaded significant facts in support of Plaintiffs’ claim that Defendants owed Plaintiffs a special duty under Ferreira, including, but not limited to: a. “For months before the body worn camera video of RPD officers brutally killing Daniel Prude was released, the CITY and RPD anticipated and planned for large-scale protests when the video was eventually released. City and RPD officials coordinated with Sheriff BAXTER to develop a coordinated protest response plan. The City and BAXTER had a special duty to plan and execute the response to the protests in a safe and lawful manner; unfortunately that was not the case. Instead, RPD officers and Sheriff’s Deputies, implementing the protest response plan, violently attacked the 23 plaintiffs and other protesters, legal observers, journalists, volunteer medics, and others. As detailed below, the City and BAXTER are liable to plaintiffs in negligently planning and executing the response to the protests.” ECF 13 ¶ 3. b. On September 4, RPD officers and Sheriff’s Deputies permitted Plaintiffs and other protesters to march onto the Court Street Bridge, and used the bridge to trap and “kettle” protesters”. (Id. ¶ 53-55). Defendants issued a dispersal order, knowing it was physically impossible for them to comply with the dispersal orders, and then less than 30 seconds after the dispersal orders were issued, RPD Officers and Sheriff’s Deputies fired hundreds of 4 of 7 202210201518 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022 pepper balls at protesters, striking many in the head and face, and then rushed at them, physically struck them with batons, and threw people to the ground. Id. ¶ 57. c. On September 5, 2020, Defendants led the protest march to the intersection of Broad Street and Exchange Boulevard, where they were again trapped and kettled by the metal barricades that had been erected. (Id. ¶ 60) Again, as plaintiffs and hundreds of other protesters were trapped at the intersection, “RPD officers and Sheriff’s deputies began to launch flash bang grenades, release tear gas, and shoot pepper balls into the crowd indiscriminately” and then they “charged at protesters and chased them and attacked them in the streets of downtown Rochester.” (Id. ¶¶ 60-61) d. The FAC detailed how the 23 Plaintiffs were injured on these nights and several other nights, including numerous individuals being shot in the face and head with pepper balls and/or pepper sprayed while they were trapped by law enforcement in confined spaces. (See Id. ¶¶ 127, 166, 173, 185, 191, 201, 236, 248, 253) 12. The County filed its motion to dismiss the Amended Complaint on May 6, 2022. (NYSCEF 20-24) 13. The City filed itsmotion to dismiss the Amended Complaint on May 17, 2022. (NYSCEF 26-29) 14. Plaintiffs filed their opposition to the County’s motion to dismiss on June 6, 2022 (NYSCEF 31). 5 of 7 202210201518 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022 15. Plaintiffs filed their opposition to the City’s motion to dismiss on June 6, 2022 (NYSCEF 32). 16. The County filed its Reply on June 15, 2022. (NYSCEF 33). 17. The City did not file a Reply. 18. On June 30, 2022, in 11 cases in Federal Court arising from the same protests in September 2020, United States District Judge Frank Geraci issued decisions and orders which mostly denied the motions to dismiss certain claims by the City of Rochester and the County of Monroe. (See NYSCEF 34-45) 19. On July 26, 2022, your undersigned filed a letter with the Court enclosing copies of the 11 decisions handed down in federal court by Judge Geraci. (See NYSCEF 34-45) 20. In the July 26, 2022 letter, Plaintiffs pointed out that, “In Barnhart, Flannery, Hilderbrant, Lynch, Maring, Sorokti, Judge Geraci denied the City and the County’s motions to dismiss the Negligent Planning claims, finding that these claims were adequately pleaded under the Court of Appeal’s recent holding in Ferreira v. City of Binghamton, No. 10, 2022 WL 837566 (N.Y. Mar. 22, 2022).” The plaintiffs in this case assert the same negligent planning claims in the fourth and fifth causes of action in the Amended Complaint. 21. On August 24, 2022, the Court handed down its decision and order on the County’s motion to dismiss, which, inter alia, dismissed the Fourth Claim for Relief against Defendant Monroe County Sheriff Todd Baxter for his Negligent Planning of the Protest Response. (NYSCEF 54) 22. Similarly on August 24, 2022, the Court handed down its decision and order on the City’s motion to dismiss, which, inter alia, dismissed the Fifth Claim for Relief against Defendant City of Rochester for its Negligent Planning of the Protest Response. (NYSCEF 55) 6 of 7 202210201518 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/20/2022 23. Both orders were served with notice of entry on September 20, 2022. (NYSCEF 57-58) 24. No prior application for the relief requested herein has been made to this Court, WHEREFORE, plaintiffs respectfully requests that their motion to renew and reargue be granted in its entirety and for such other and further relief as this Honorable Court deems just and proper. Dated: New York, New York October 20, 2022 ~//s//~ Elliot D. Shields 7 of 7